Same Sex Marriage Threatens Religious Liberty
In theory, allowing homosexual couples to marry should not threaten anyone’s religious freedom. Although the social and moral implications of gay marriage are apparent to many, few realize the significant danger posed to religious freedom by the California Supreme Court ruling in May giving gays a constitutional right to marry. The Court’s decision now elevates homosexuality to the same legal status as race, a protected class. This Court has refused to grant religious freedom the same status as a fundamental right, instead expressing doubt about the free exercise of religion and ruling against religious freedom consistently in a series of decisions over the past fifteen years. The net result is a legal imbalance where gay rights enjoy maximum protection, and the rights of individual religious conscience enjoy very little protection.
It is important to reiterate at the outset of this discussion that while the Seventh-day Adventist Church upholds the biblical teachings on sexual morality — that sexual intimacy is a gift of God to be reserved for the marriage relation between a man and a woman – we also uphold the biblical doctrine of the gospel of Jesus Christ – that He died as an atoning sacrifice for all who would accept Him by faith. The love of God is not exclusive. Hence, this discussion of the conflict between gay rights and religious freedom is not intended as an attack on gays, nor should the problems posed by gay marriage give rise to hostility or prejudice against gays.
Massachusetts was the first state to approve gay marriage. Thereafter, Boston required adoption agencies to serve gays. Although Catholic Charities accounted for most of the adoptions in the city, no accommodation was offered for their religious objections to placing children with gay couples. Catholic Charities made the difficult decision to close down its adoption services, which had a devastating impact on children in Boston. This was completely unnecessary. Other adoption agencies could have provided the needed services to those gays who sought to adopt. Boston could have chosen to respect the rights of conscience of Catholic Charities, while also providing adoption services to gays. It did not have to be a “zero sum game,” with a winner and a loser. The price of Boston’s rigid adherence to political correctness is that thousands of children who need to be placed in adoptive homes will be delayed indefinitely, and will languish in foster care. What a tragedy!
The experience of Catholic Charities in Boston is an ominous warning about the risks faced by many religious organizations. It is important to understand that the goal is to equate the religious moral position regarding homosexuality as the equivalent of racism. This was evident in the arguments presented to the California Supreme Court in the case. The opening argument criticized the domestic partnership system as an unacceptable “separate but equal” approach, akin to racially segregated public schools that were the subject of the historic Brown v. Board of Education decision in 1954. When Bob Jones University was accused of racism for its policy against inter racial dating, it lost its tax exempt status. There is little doubt that the tax exemption of churches and religious institutions will eventually be challenged on grounds that policies, practices and teachings regarding homosexuality violate public policy, just as Bob Jones’ dating policy did. Some of us have seen this coming ever since the Bob Jones case was decided in the early 1980s.
The hostility to individual conscience was evident in arguments presented to the California Supreme Court earlier this week in a case pitting the rights of a lesbian couple to receive artificial insemination services from a medical clinic against the rights of Christian doctors to refuse to provide services in violation of their conscience. Lawyers representing the lesbian couple argued that there simply is no religious defense to such discrimination. In other words, if they can prove discrimination, there is no balancing of the rights of conscience. The rights of conscience have no legal standing. The L.A. Times headline indicated that the court seemed likely to rule against the doctors. No court has yet considered the facts of this case, or whether the lesbian couple could have obtained the services in a timely manner without requiring these Christian doctors to violate their beliefs. But no such “win win” compromise is desirable to those advocating for “equality rights” of gays. Instead, equality must completely trump liberty.
According to lawyers for the doctors with whom I have discussed this case, the doctors informed their patients at the outset as to the limitations of the services they were willing to provide. They also informed the patients that should additional services be required, they would refer them to an alternate provider, and even pay any added costs incurred should the insurance not fully cover them. These were not emergency services, and the doctors claim to have acted responsibly to insure that their patients were able to obtain the services they desired in a timely manner. But none of this is relevant to the Court, or to those advocating for the patients. They want to destroy the rights of conscience. They insist on a ruling that religion doesn’t count at all, and that every business provider must serve gays, regardless of their religious beliefs.
The same law at issue in this case, the Unruh Civil Rights Act, is the subject of a pending case against Lutheran High School, challenging the expulsion of two lesbian students from a religious school. The trial court held that the Unruh Act does not apply to private schools, but the ruling has been appealed. You can readily see the problem should the courts decide that Unruh should apply to private and religious schools. Christian schools will lose the right to discipline students for sexual misconduct with others of the same sex.
The absurdity of the “equality” argument comes into sharp focus in this scenario. Consider that a Christian school could expel two heterosexual students for sexual misconduct without exposing itself to legal liability, but could not expel homosexual students for the same offense. This is what it means for gays to become a protected class. Instead of achieving equality, they achieve a superior status in society. A religious school would be able to fire a teacher for garden variety adultery, but it would be illegal to fire a gay teacher for the same offense.
Barry Bussey, Director of Public Affairs & Religious Liberty for the Seventh-day Adventist Church in Canada, has written most insightfully about this conflict between “equality” and religious freedom in the book: Politics and Prophecy.” The gay community has made “equality” the primary value, and has elevated it above liberty in general, and religious freedom in particular. The faith community has rejected this extreme view of “equality,” but has been equally hostile to the rights of gays. Bussey has thoughtfully analyzed the “winner-take-all” attitude of both sides in the marriage debate, in seeking to determine whether there was any hope of a middle ground, where the rights of gays and churches could co-exist. His conclusion was not optimistic.
Although we have long assumed that religious liberty enjoys a preferred status as a fundamental constitutional right, this has not been true either in California or the United States Supreme Court for nearly two decades. The Supreme Court practically discarded the First Amendment’s protection for the free exercise of religion as a “luxury that a well ordered society can no longer afford” in an infamous 1990 decision, Employment Division v. Smith. Although California has not explicitly followed suit, the California Supreme Court has ruled against religious liberty consistently, in a series of cases since 1995.
In 1995, the Court held that Evelyn Smith’s Presbyterian faith was not a good enough reason to refuse to rent one of her four duplex apartments to an unmarried [heterosexual] couple, despite the fact that in the same city of Chico, the State University maintained hundreds of units of housing exclusively for married couples. Such hostility to religious freedom interests has been the consistent theme of court rulings in California.
Californians will have the opportunity to reaffirm that marriage consists of a man and a woman in November, when a constitutional marriage amendment is expected to appear on the ballot. Although such a constitutional amendment may resolve the immediate issue of marriage, if successful, by reversing the court’s decision upholding gay marriage, it will do nothing to change the legal status of homosexuality as a fundamental right, given preferred status in California over the right to practice one’s faith.
There is an ancient Chinese curse: “may you live in interesting times.” It was considered a curse, because peace and prosperity were preferred over instability and excitement. Hold on for the ride! There is likely to be considerable turbulence ahead for religious liberty! Your support of the North American Religious Liberty Association, and our efforts to preserve liberty of conscience is needed now more than ever!
Now I’m officially done with this topic.